[2022] KEHC 15092 (KLR)

In re Estate of Mwololo Kisele Mukuti (Deceased) (Family Appeal 1 of 2019) [2022] KEHC 15092 (KLR) (1 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15092 (KLR)

Republic of Kenya

In the High Court at Makueni

Family Appeal 1 of 2019

GMA Dulu, J

November 1, 2022

Between

Peter Mwololo Kisese

Appellant

and

Ndulu Mwololo Kisele

1st Respondent

Jonathan Muisyo Mulovi

2nd Respondent

(Being an appeal from the Ruling of Honourable E. Muiru SRM Kilungu Law Courts delivered on 13th December 2018 in Kilungu Succession Cause No. 62 of 2017)

Judgment

1. In a ruling delivered on December 13, 2018 to a summons dated September 1, 2019 , which had sought annulment of grant of letters of administration issued on August 16, 2018 herein, the Magistrate’s Court dismissed the said request for annulment of grant and concluded as follows –“From the record, it is clear that Ndulu Mwololo is the wife of the deceased while the objector is a son of the deceased whereas the petitioner Jonathan Muisyo has a claim in the deceased’s estate as a purchaser. Section 35 provides that a surviving spouse has a life interest in the whole residue of the net intestate estate and section 93 provides for the purchaser’s interest. Hence I do opine that by the court issuing the grant dated August 16, 2018 is not prejudicial to the objector as he is still a beneficiary of the deceased’s estate as his mother Ndulu Mwololo. Therefore, at the point of distribution of the deceased’s estate his concerns will be duly canvassed. Consequently, I do hereby invoke the provisions of rule 73 of the Probate and Administration Rules to enjoin the objector herein as administrator of the deceased’s estate in the interests of justice”.

2. Aggrieved by the above ruling of the Magistrate’s Court, the appellant, who was the objector and who was joined as a co-administrator to the deceased’s estate, through counsel Nathan Mbullo & Associates, has now come to this court on appeal on the following grounds –1. That the learned trial magistrate erred in law and fact by failing to appreciate that there is no petition filed by the respondent upon which a grant of letters of administration would be granted.2. That the learned magistrate erred in law and fact by failing to find that the 2nd respondent not being a creditor to the estate of Mwololo Kisele (deceased) was not one of the persons allowed by law under section 66 of the Law of Succession Act to apply for citation let alone a grant of letters of administration.3. That the learned trial magistrate erred in law and in fact by failing to find that the 2nd respondent being a stranger to the estate of the late Mwololo Kisele, could not even be granted leave to apply for citation.4. That the learned magistrate erred in law and fact by failing to hold that the respondents were (inter meddling) in the estate of the late Mwololo Kisele and recommend investigation with a view to prosecution to committing a crime against the estate of the late Mwololo Kisele.5. That the learned magistrate erred in law and in fact by failing to call for and examine the register and satisfy that there was no petition.6. That the whole ruling or order of the learned magistrate is against the pleadings, submissions and the law.

3. The appeal was canvassed through filing of written submissions. In this regard, I have perused and considered the submissions filed by Nathan Mbulo & Associates counsel for the appellant, and those filed by Oduk & Company Advocates for the respondent. I note that both counsel relied on decided court cases, and provisions of the Law of Succession Act (cap 160), and the Civil Procedure Act (cap 21). Ndulu Mwololo Kisele the wife of the deceased, who is an administrator, did not file any submissions or participate in the appeal.

4. Though the Civil Procedure Act has been referred to extensively in submissions, regarding the filing of the appeal, in my understanding, it is the provisions of the Law of Succession Act (cap 160) which apply to all probate and administration proceedings. With regard to appeals from the magistrate’s court, section 50 of the Law Succession Act is relevant. It states as follows –50(1)An appeal shall lie to the High Court in respect of any order or decree made by a resident magistrate in respect of any estate and the decision of the High Court thereon shall be final.

5. In my view, the provisions of section 79G of the Civil Procedure Act, with respect to filing civil appeals within 30 days, do not apply to appeals in probate and administration matters. The only provisions of the Civil Procedure Rules which apply to probate & administration matters are stated under rule 63 of the Probate & Administration Rules to be order XV, XVIII, XXV, XLIV, and XLIX, together with the High Court (Practice and Procedure) Rules. Thus strictly speaking, there is no legal requirement that the appeals in succession matters must be filed within 30 days, and that the court may determine a reasonable time. Since succession proceedings are expected by law, to be wound up within six (6) months after issuance of letters of the confirmed letters of administration, in my view, in succession matters can be filed any time before the lapse of six (6) months from confirmation of grant, or any time extension granted by court.

6. Coming now to this appeal, I find that there was no unreasonable delay in filing this appeal from the magistrate’s ruling.

7. I thus dismiss the respondent’s submissions that the appeal was filed after the lapse of the time allowed for filing appeals.

8. With regard to the appellant’s contention that there was no valid petition pending herein, and his reference to forms 5, 11, 12, 57, 37 and 80 of the Probate and Administration Rules herein, one has to note that this succession cause did not commence in the ordinary way, but through filing of a citation. Thus whoever would apply for issuance of letters of administration would still have to do so in compliance with the specific orders granted by the court in the citation proceedings.

9. Since I have not been told that there was any flouting of the orders granted by the court in the citation proceedings, in my view, the fact that one or the other of the statutory forms was not filed per se, did not make the succession proceedings herein a nullity or fatally irregular under section 76 of the Law of Succession Act. I thus do not agree with the appellant’s contention that the succession proceedings herein were fatally defective, merely because a certain form was not used, even though the proceedings were properly gazetted for any objections to be filed if need be.

10. The appellant has also argued that, the respondent herein was not qualified to apply for citation, and also not qualified to be enjoined as an administrator, as he is not a beneficiary or creditor of the deceased.

11. In this regard, I note that the mother of the appellant, who has been a co-administrator, has not complained about the joinder of Jonathan Muisyo Mulovi as administrator.

12. The appellant’s counsel has also relied on section 22 of the Law of Succession Act, to contend that the respondent was not qualified to apply for or to be granted citation orders. The said section provides as follows –22(1)A citation may be issued at the instance of any person who would himself be entitled to a grant in the event of the person cited renouncing his right to do so.

13. Indeed, the above is the position under the law. The section above should however, be read with section 66 of the Law of Succession Act which provides as follows –66. When a deceased has died intestate, the court shall, save as otherwise expressly provided have final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned be made, but shall, without prejudice to that discretion, accept as a general guide, the following order of preference –a.A surviving spouse or spouses, with or without association of other beneficiaries,b.Other beneficiaries entitled on priority according to their respective beneficial interests as provided by part V;c.The public trustee; andd.Creditors

14. In my view, the above list under section 66 of the act is not a closed list. Thus, if any of the listed persons in (a) (b) (c) and (d) above approaches the court for issuance of letters of administration, they should be issued with the said letters, and the preference or priority to be so issued has to go according to the above list.

15. However, the important words under the section are that the court – “ has a final discretion as to the person or persons to whom a grant of letters of administration shall, subject to the best interests of all concerned, be made”.

16. Thus in my view, the respondent did not have to be a creditor to be appointed an administrator. He did not also need to be a beneficiary of the estate to be appointed as an administrator, if that appointment does not negatively affect the best interests of those concerned, the beneficiaries. Having not been told that his being administrator adversely affects any beneficiary, I will not agree with the appellant’s contention.

17. On the basis of the above considerations, and taking into account that Ndulu Mwololo Kisele, the widow of the deceased who has a higher priority to appointment as administrator, has not complained, I find no valid basis for the contention of the appellant that the respondent Jonathan Muisyo Mulovi is not entitled to be an administrator herein. The appeal is thus not merited and is for dismissal.

18. I note also that this is an old 2017 probate & administration matter, and that the deceased died long ago on August 8, 2007, and the matter has been pending in this court, with one application after another. It is a matter of concern to this court these proceedings have not been finalized expeditiously. I thus have also to issue orders for the expedited conclusion of the matter.

19. Consequently, and for the above reasons, I dismiss the appeal. I order that all or any of the administrators do file summons for confirmation of grant within 60 days from today.

20. The costs of the appeal will follow the determination of the probate & administration proceedings herein. I will hereafter fix a mention date to confirm filing of summons for confirmation of grant.

DELIVERED, SIGNED & DATED THIS 1ST DAY OF NOVEMBER, 2022, VIRTUALLY AT MAKUENI.........................................GEORGE DULUJUDGE